UK Social Security and Child Support Commissioners' Decisions

CCS 16535/96 (*19/97) [1997] UKSSCSC 10 (5th June, 1997)

Commissioner's File: CCS 16535/96 (*19/97)
Mr Commissioner Rowland
5 June 1997

CHILD SUPPORT ACTS 1991 AND 1995

APPEAL FROM DECISION OF CHILD SUPPORT APPEAL TRIBUNAL
ON A QUESTION OF LAW

DECISION OF THE CHILD SUPPORT COMMISSIONER


Appeal Tribunal: Swansea CSAT

[ORAL HEARING]

1. 1. This is an appeal, brought by the mother of the relevant children with the leave of the tribunal chairman, against a decision of the Swansea child support appeal tribunal dated 12 August 1996 whereby they dismissed her appeal against a decision by a child support officer dated 10 November 1995 refusing to vary a decision of another child support officer dated 10 October 1995 which was given in the following terms:

"I am writing to you with regard to the current situation on your application for child support maintenance from [the alleged father].

After careful consideration I have decided that, under section 2 of the Child Support Act 1991, the welfare of your children is likely to be affected if we were to continue our actions. Therefore I have decided to suspend all further action in your case."

I held an oral hearing of the appeal at the Civil Court Centre in Cardiff. The mother attended and was very ably represented by her present partner who is a law student. The alleged father neither attended nor was represented but he sent a letter which I received after the hearing and to which I shall refer below. The child support officer and the Secretary of State, who intervened with my leave, were both represented by Mr Leo Scoon of the Office of the Solicitor to the Departments of Social Security and Health.

The history

2. The mother first applied for child support maintenance in June 1993. At that time, she was in receipt of income support and she made the application reluctantly. In July 1993 she ceased to be entitled to income support and she did not again become entitled to one of the benefits mentioned in section 6(1) to the Child Support Act 1991 until 31 March 1994. I was told that it was in August 1993 that she was sent the undated form CSA 37 (doc 111), requiring her to give authorisation to the Secretary of State to take action under the 1991 Act. She complied with that requirement. On 19 November 1993 she completed another application for child support maintenance. A maintenance enquiry form was sent to the alleged father on 16 December 1993.

3. It appears that the Child Support Agency has lost the application form completed in June and has proceeded on the basis of the form completed in November. Mr Scoon suggested that the first application had been "discontinued" but he was unable to point to any evidence that that was so or to the statutory basis for any discontinuance. I heard evidence briefly from the mother as to the history of the claim. She told me that she had been reluctant to make the application, saying "Don't push it", but had been told that she must. She was never told that it had been accepted that she need not authorise the Secretary of State to take action and she understood the completion of the new form in November to follow from the insistence that she should give her authority. The form CSA 37 supports that evidence and I accept it. It seems to me to be likely that the mother was asked to complete the new application form because the Agency had already lost the original one; otherwise it was entirely unnecessary. I therefore accept that it represented merely a giving of fresh information by the mother rather than an entirely fresh application. A new application made in November would have been made under section 4, rather than section 6, of the 1991 Act. I was referred to paragraph 2 of Schedule 2 to the Child Support (Maintenance Assessment Procedure) Regulations 1992 and it was suggested that there might have been a written agreement within the meaning of the Schedule to the Child Support Act 1991 (Commencement No.3 and Transitional Provisions) Order 1992 so as to preclude an application under section 4 at that time. The evidence of any written agreement was tenuous but, in any event, the only agreement there might have been was between the Department of Social Security and the alleged father and not between the mother and the alleged father, in which case it was of doubtful relevance once the mother ceased to be in receipt of income support. I do not accept that there was a written agreement precluding an application under section 4 but I do not consider that it matters whether there was a valid application under section 4 in November 1993 or whether the only application was the one made under section 6 in June 1993. The indisputable fact is that at least one of those applications was a valid application which caused the issue to the father of the maintenance enquiry form on 16 December 1993 (none having been issued earlier) and, by virtue of regulation 30 of the Child Support (Maintenance Assessment Procedure) Regulations 1992, it is the date of issue of that form that would govern the effective date of any maintenance assessment under section 11 of the Child Support Act 1991.

4. The alleged father did not return the maintenance enquiry form within the prescribed time and, on 10 January 1994, a child support officer advised the alleged father of his or her intention to issue an interim maintenance assessment under section 12 of the 1991 Act. That produced no response and so the child support officer duly made an interim maintenance assessment, requiring the alleged father to pay child support maintenance at the rate of £98.48 pw with effect from 27 January 1994. Still, the alleged father did not return the maintenance enquiry form. He also paid no maintenance and, on 21 June 1995, the Secretary of State obtained a liability order. That seems to have prompted the alleged father into action. On 7 July 1995, he returned the maintenance enquiry form, denying paternity and, therefore, not providing any financial information.

5. On 2 August 1995, a child support officer wrote to the alleged father saying:

"As you have stated in your returned form that you are not the father of [the children], you are required to ask for the Interim Maintenance Assessment to be cancelled. This has to be done in writing. Until such a request is received the Interim Maintenance Assessment will continue."

Not surprisingly, the alleged father duly wrote a letter, received on 11 August 1995, asking for the interim maintenance assessment to be cancelled.

6. The alleged father had also made a threat to kill the mother if the Child Support Agency continued to pursue him for child support maintenance. On 17 August 1995, an officer visited the mother to discuss whether she wished action to be continued. The officer's notes show that the mother was in two minds about it. On the same day, a decision was made in respect of the interim maintenance assessment and a letter was sent to the mother, beginning in the following terms:

"Child maintenance assessment

"The child support officer dealing with your case has looked again at the interim maintenance assessment made on 10 February 1994 and has decided that it should be cancelled because the absent parent claims that he is not the father of [the children].

"What happens next

"The child support officer will look at your case again and then decide whether or not to make a maintenance assessment or another interim maintenance assessment. We will write to you again to let you know about the decision."

On 10 October 1995, a child support officer wrote to the mother the letter deciding to suspend all further action on the case, the terms of which I have set out above in paragraph 1 of this decision.

7. In a letter dated 12 October 1995 and received by the Child Support Agency on 16 October 1995, the mother sought to "appeal" against both the decision of 17 August 1995 and the decision of 10 October 1995. The child support officer treated that letter as an application for review of the second decision and, on 10 November 1995, another child support officer reviewed, but refused to vary, the decision. His or her reasoning was as follows:-

"The PWC has requested a S/18 Review, because she wishes the decision of the original CSO to be reviewed. The CSO has refused to make a maintenance assessment, based on the grounds that should the Agency pursue, the A/P [the alleged father] anew, then the welfare of the qualifying children would be affected. Section 2 of the CS Act was applied to this particular case, based on the evidence and findings available.

1) The A/P is extremely abusive and violent

2) He has made violent threats to the PWC

3) He has been convicted in the past of ABH (Actual bodily harm)

4) He has threatened to kill the PWC in the past

5) When the A/P appeared in court at the liability court hearing, the spectators were ushered out of the court room to ensure their safety.

6) He has made violent threats against any bailiff that tries to enter his property (threatened to shoot them).

"The PWC under section 6 paragraph 3 of the CS Act 1991, has requested the Agency to actively still pursue the A/P for child maintenance. However in this particular case, section 2 of the CS Act was applied based on the aforementioned details about the A/P. The CSO having regard for the welfare of the qualifying children [....] decided that should the Agency actively seek to continue pursuing the A/P, then the welfare of the children would be affected by such a decision; their safety as well could also be placed in jeopardy. As an Independent CSO and considering Section 18(1)(a) (application for MA refused) I feel the decision not pursue the A/P remains unchanged, and it is my considered opinion, that section 2 of the CS Act remains. The A/P was aggrieved and became violent and threatening by the Agency's previous intervention, and if the Agency were now to continue pursuing him, they would be powerless to prevent any harm coming to the children."

It was against that decision that the mother appealed to the tribunal.

8. The tribunal dismissed the mother's appeal. They made the following findings of fact:-

"On 10 October 1995 the Secretary of State decided not to refer the question of paternity of [....] to the Family Proceedings Court.

"[The alleged father] has said that he would shoot [the mother]. His hobby is firearms and he has owned a number of them. He claimed today that he has not owned any firearms in the last 28 years and he used those for target shooting when he owned both rifles and hand guns. He last handled a firearm 4 days ago at a military fair. The only prison sentence he has served is one of 3½ weeks for non-payment of maintenance to a former wife. He has 5 convictions for actual bodily harm:

a) On a man who owed him money.

b) On another motorist ("road rage").

c) 20 years ago on his first wife when he was fined £60.

d) &e) Two assaults on police 4½ years ago when he was fined £360.

"He has never seen a psychiatrist nor needed treatment from a GP for mental illness.

"On 18 October 1993 [the alleged father] made an application for contact and parental responsibility in respect of the two children. It was agreed that he should have parental responsibility and contact by letter. He did sign the birth register as father of both of the children. He now strongly denies that he is the father of the children because he alleges that [the mother] has since told him he is not their father.

"Today [the alleged father] told us that [the mother] has reason to be afraid of him. When asked what it was that she should be afraid of [the alleged father] replied that he couldn't say because he didn't know. He also said that if anything happened to her the welfare of the children could be affected.

"As to [the mother and her representative], [the mother] made an application for child support in June 1993. At that time she was on Income Support. She did not pursue this application telling the Agency "Don't push it".

"In November 1993 [the mother] made a second application for child support. She had previously been awarded Family Credit on 13 July 1993 but this was an error and the order was cancelled on 28 July 1993. Therefore at November 1993 there were no prescribed benefits in payment."

They gave the following additional reasons for their decision.

"We found this a very complicated and very worrying case.

"In view of [the alleged father's] very frank statement that [the mother] had reason to fear him and that anything that happened to her could affect the welfare of the children we accepted the basic submission of the Adjudication Officer. Because of what [the alleged father] had said there was an obvious risk to the children's welfare if the Agency pursued [the alleged father] for payment of child maintenance.

"As to [the mother and her representative], [her representative] submitted that we should look at the first application for child support made in June 1993. It was claimed that at that time qualifying benefits were in payment and therefore the application came under Section 6 of the Act which stated "the parent of a qualifying child shall ... authorise the Secretary of State...". It was further submitted that the application of November 1993 was in effect a continuation of the earlier application made in June 1993.

"We rejected the argument that the November 1993 application was only an extension of the June application and regarded the November application as a completely fresh and independent application. We therefore accepted the broad thrust of the Child Support Officer's submission as in paragraph 22 of that submission.

"However we thought it appropriate to grant leave to appeal."

Strictly speaking, leave to appeal was granted by the chairman rather than by the whole tribunal. With that leave, the mother appeals to me against the tribunal's decision.

9. The mother first sought to have the tribunal's decision set aside but that application was refused by a differently constituted tribunal on 20 September 1996. The mother has sought to appeal against that decision as well as the original decision. However, by virtue of regulation 16(2) of the Child Support Appeal Tribunal (Procedure) Regulations 1992, there is no right of appeal against a decision given on an application for the setting aside of an earlier decision. Therefore, I need consider only the mother's appeal against the decision given on 12 August 1996.

10. I am told that a paper application for leave to apply for judicial review, in order to seek relief in the form of orders of certiorari and mandamus directed to "the Child Support Agency" and an order of certiorari to quash the decision of the tribunal dated 12 August 1996, has been dismissed by a Judge and has not been renewed by the mother as it has been decided to await my decision before deciding what further action should be taken.

The arguments on the appeal

The alleged father's letter

11. The alleged father has taken no part in this appeal, although, as I have said, he did send a letter after the hearing, explaining his absence. As the appeal to me lies solely on a point of law, the points raised in the letter are not of direct relevance to this decision, although some of them may be relevant when the child support officer considers the case again. He does not refer to the issue of paternity. He does refer to the fact that he has remarried, which suggests that he may be concerned at the amount of any assessment of child support maintenance. If that is his primary concern, I would draw to his attention the possibility that the amount of any assessment based on his actual circumstances may well be less than the interim maintenance assessment that was originally made in this case, which means that it may be in his interest to supply the information that has been requested. Furthermore, if he does assist with the making of a proper assessment, there may even be a remote prospect of persuading the Secretary of State and, through her, the mother to accept payment of a sum less than the full assessment. However, until an assessment is made, there can be no such discussions. It might be wise for him to seek some professional advice.

Jurisdiction

12. Although it is common to hear talk of "decisions of the Child Support Agency", decisions relating to child support maintenance are, properly speaking, made either by officers acting in the name of the Secretary of State for Social Security or by child support officers. The division of functions is not always clear and, in my view, is not always helpful. Nevertheless, it is of vital importance because there is no right of appeal against decisions of the Secretary of State. Only certain decisions of child support officers are susceptible to appeal to a tribunal and a further appeal to a Commissioner.

13. It follows that it is necessary to be precise as to the decision that is under appeal. In the present case, the decision under appeal was the decision dated 10 November 1995, refusing to vary the decision of 10 October 1995 "to suspend all further action". It is true that, in her letter of 12 October 1995, the mother had sought to appeal against the decision dated 17 August 1995 in which the child support officer had cancelled the interim maintenance assessment. However, I accept the submission of the Secretary of State that the effect of regulation 8(11) of the Child Support (Maintenance Assessment Procedure) Regulations 1992 was that the mother had no right to apply for a review of that decision with the consequence that she also had no right of appeal, although an absent parent had, by virtue of regulation 9(6), the right to apply for a review of a refusal to cancel an interim maintenance assessment. I note that, on 22 January 1996, regulations 8 and 9 were replaced by substituting new regulations 8 to 9A (see regulations 16 and 17 of the Child Support (Miscellaneous Amendments) (No. 2) Regulations 1995), but those amendments cannot be relevant to this appeal.

14. As to the nature of the decisions of 10 October 1995 and 10 November 1995, the child support officer now concerned with the case, the Secretary of State and the mother have all taken different views in their written submissions. The child support officer has submitted that a decision to suspend action on a case was a matter entirely for the Secretary of State and so did not fall within the jurisdiction of either a child support officer or a tribunal. The Secretary of State has submitted that the decision made in this case on 10 October 1995 was within the jurisdiction of a child support officer but was no more than a decision refusing to make a fresh interim maintenance assessment, in respect of which the mother had no right to apply for a review. Mr Scoon, who appeared on behalf of both the child support officer and the Secretary of State, adopted the Secretary of State's approach. The mother's representative has submitted that the decision dated 10 October 1995 was a decision refusing to make any assessment and that the mother did have a right to apply for a review. That submission coincides with the view of the reviewing child support officer.

15. I do not accept Mr Scoon's argument that the decisions of 10 October 1995 and 10 November 1995 were no more than decisions not to make a new interim maintenance assessment. It may well be the case that the second paragraph of the standard letter sent to the mother on 17 August 1995 was drafted with regulation 9(3)(b) and (c) of the Child Support (Maintenance Assessment Procedure) Regulations 1992 in mind, but neither of the subsequent decisions was specifically limited to interim maintenance assessments. In particular, the reviewing officer plainly had in mind all assessments. Furthermore, the Child Support Agency - to use a neutral term - has in fact steadfastly refused to take any action at all for the last eighteen months and there has been no indication from either the child support officer or the Secretary of State that that has been the result of any decision other than the two decisions of the child support officers and the decision of the tribunal which are the subject of these proceedings.

16. Nor do I accept the child support officer's submission that the tribunal should have declined jurisdiction on the ground that the suspension of action was not a matter for the child support officer. The fact is that the decision was made by a child support officer and, in the absence of any reason for not doing so, it must be presumed that it related to matters within his or her jurisdiction, especially as the reviewing child support officer did so. The reviewing child support officer regarded the decision of 10 October 1995 as being a decision to refuse to make a maintenance assessment, which was plainly its practical effect because the suspension of action was indefinite. There was a right, under section 18(1)(a) of the Child Support Act 1991, to apply for a review of a decision to refuse to make a maintenance assessment and there was a right, under section 20, to appeal against the review decision. I agree with the reviewing child support officer's approach to this issue. Accordingly, I accept the submission made on behalf of the mother and take the view that the tribunal were right to accept jurisdiction.

The error of law - the duty to make a maintenance assessment

17. The child support officers and the tribunal all considered that section 2 of the Child Support Act 1991 entitled them to decide that no maintenance assessment should be made. Section 2 provides:-

"Where, in any case which falls to be dealt with under this Act, the Secretary of State or any child support officer is considering the exercise of any discretionary power conferred by this Act, he shall have regard to the welfare of any child likely to be affected by his decision."

That section does not confer any power itself; it merely states how powers conferred elsewhere in the statute should be applied. In the present case, there is no relevant power because section 11(1) imposes duties on both the Secretary of State and child support officers. Section 11(1) provides:-

"Any application for a maintenance assessment made to the Secretary of State shall be referred by him to a child support officer whose duty it shall be to deal with the application in accordance with the provision made by or under this Act."

Mr Scoon was unable to point to any provision giving a child support officer a discretionary power to refuse to make a maintenance assessment (other than an interim maintenance assessment under section 12) in terms that might make section 2 relevant. In my view the tribunal's decision was clearly erroneous in point of law. They should have allowed the mother's appeal.

18. It is not surprising that section 11(1) should be in mandatory terms. Before the Child Support Act 1991 came into force, those caring for children could make applications to courts for maintenance in respect of the children. Section 8 of that Act removed those rights. It is arguable that the Act does not give to a parent with care a clear right to child support maintenance, but there is certainly a legitimate expectation that child support maintenance will be paid if the statutory criteria are met. In the absence of agreement with an absent parent, a person caring for a child has no choice but to seek child support maintenance through the Child Support Agency. It would be odd if the Agency could refuse to act in a case where a person has a prima facie expectation of a substantial amount of money for the benefit of a child. Indeed, there may be other provisions of the Act that are in permissive terms but which must be construed as imposing a duty because, as Lord Blackburn observed in Julius v. Bishop of Oxford (1880) 5 App Cas 214 at 241,

"if the object for which the power is conferred is for the purpose of enforcing a right, there may be a duty cast on the donee of the power, to exercise it for the benefit of those who have that right, when required on their behalf".

It is one thing for the Child Support Agency to cease action on the request of the person who has applied for child support maintenance (see sections 4(5), 4(6), 6(2), 6(11) and 6(12)), but it is entirely another matter for the Agency to cease action against the wishes of that person (see section 6(3)).

19. Mr Scoon pointed out that, even if there is in theory a duty to make a maintenance assessment, there is a practical difficulty in doing so in the absence of any information about the alleged father's income. That is precisely the reason why an interim maintenance order under section 12 might be appropriate. However, if the child support officer is not minded to make an interim maintenance assessment, he or she cannot thereby escape the duty to act under section 11. Indeed, the lack of any right in a parent with care to apply for a review of a refusal to make an interim maintenance assessment was presumably due to the legislature considering that a parent with care had no legitimate expectation to receive the amount of an interim maintenance assessment but that the refusal to make such an assessment did not affect his or her right to an assessment under section 11 and his or her expectation of payment under it.

20. The mother's representative referred me to the judgement of May LJ in Duggan v. Chief Adjudication Officer (reported as an appendix to R(SB) 13/89) in which he said:-

"A claim to any Social Security benefit is initiated by the person contending that he or she is so entitled. I have no doubt that on receiving such a claim an adjudication officer is under an obligation to act fairly on it and to obtain any necessary information relevant to that particular claim."

I accept the mother's representative's submission that a child support officer is under the same obligation when dealing with an application for a maintenance assessment.

21. There seems sometimes to be a belief among child support officers that a failure of an alleged absent parent to provide the financial information requested in a maintenance enquiry form makes it impossible to make a maintenance assessment under section 11. That is not so. There is no reason why a child support officer may not seek the information elsewhere and why he or she may not make reasonable estimates of income if precise figures are not available. In the present case, the mother had provided the Child Support Agency with details of the alleged father's employment, which should have provided a starting point for any investigations. The child support officer could then have sought the assistance of the Secretary of State who has the power to require an employer to give information enabling a maintenance assessment to be made (see regulations 2(1), 2(2)(c), 3(1)(f) and 3(2)(g) of the Child Support (Information, Evidence and Disclosure) Regulations 1992). Lack of information was therefore not a valid excuse for inaction.

Paternity

22. There is, however, another complication because the alleged father has denied paternity. It was on that ground that the original interim maintenance assessment was cancelled. I was told that the Child Support Agency now takes the view that the interim maintenance assessment should not have been cancelled on that ground. Firstly, it is considered that the interim maintenance assessment should merely have been "suspended" while a reference was made to a court (if such a reference were to be made), by which I understood Mr Scoon to mean that the assessment would remain in being but would not be enforced until the court had determined the parentage issue. Secondly, it was suggested that there was evidence in the Child Support Agency's file making an application to a court inappropriate, although there is no evidence supporting the tribunal's finding that the Secretary of State has in fact made a decision not to make an application to a court. I understood the evidence to be the making of an order, in proceedings under the Children Act 1989, that the alleged father shall have parental responsibility. I heard argument, but I have not seen the full evidence, in relation to those points. It is not necessary for me to deal with the first point (although I think there is force in the submission of Mr Scoon), but it is necessary for me to say something about the second if I am to refer this matter to a child support officer.

23. Section 26(1) of the Child Support Act 1991 provides:-

"Where a person who is alleged to be a parent of a child with respect to whom an application for a maintenance assessment has been made (the 'alleged parent') denies that he is one of the child's parents, the child support officer concerned shall not make a maintenance assessment on the assumption that the alleged parent is one of the child's parents unless the case falls within one of those set out in subsection (2)."

The only one of the cases set out in subsection (2) that might be relevant is Case F which applies:-

"Where-

(a) the alleged parent has been found, or adjudged, to be the father of the child in question -

(i) in proceedings before any court in England and Wales which are relevant proceedings for the purposes of section 12 of the Civil Evidence Act 1968; or
(ii) in affiliation proceedings before any court in the United Kingdom,

(whether or not he offered any defence to the allegation of paternity) and that finding or adjudication still subsists; and

(b) the child has not subsequently been adopted."

Proceedings under the Children Act 1989 are relevant proceedings for the purposes of section 12 of the Civil Evidence Act 1968.

24. It seems to me that the concluding words of paragraph (a) of Case F make it plain that a person may be "found" to be a parent even if parentage was not in issue in the relevant proceedings. However, it is equally clear, both from the requirement that the adjudication still subsist and from the fact that there can be no application under section 27 for a declaration of parentage where the case falls within one of those set out in section 26(2), that a finding by a court is only relevant if it is open to the person found to have been a parent to make an application to that court for the finding to be set aside. In other words, where a case falls within Case F of section 26(2), the burden of applying to a court is placed on the person who denies being a parent and that person must apply to the court which made the relevant adjudication for that adjudication to be set aside. It may be appropriate to delay the making of an assessment while such an application is pending, although it does not follow that there should be a delay in seeking the information upon which an assessment might be made in the event of the application being unsuccessful. I also observe that the setting aside of an order based on a finding that a person is a parent will not always imply a finding that he or she is not a parent, so that, in order finally to obtain a finding of parentage, it may be necessary in some cases to make an application under section 27 once the relevant adjudication has been set aside.

25. If the child support officer is not satisfied that the case falls within any of the cases in section 26(2) a maintenance assessment cannot be made, but he or she should offer both the Secretary of Sate and the mother the opportunity of making an application to a court under section 27 for a declaration of parentage before deciding to refuse to make a maintenance assessment. The Legal Aid Board's guidance suggests that legal aid will usually be granted to an applicant (subject to means) if the Secretary of State declines to make an application. If the alleged father is declared to be the father of the relevant children, the case would then fall within Case D of section 26(2).

26. As I have not seen all the relevant evidence, I make no finding as to the application of section 26 in the present case. I merely offer the above comments by way of guidance.

Conclusion

27. I allow the mother's appeal. I set aside the decision of the Swansea child support appeal tribunal dated 12 August 1996 and I refer this case to another child support officer for determination. Unless he or she is precluded from doing so by section 26(1) of the Child Support Act 1991, the child support officer must now proceed to make a maintenance assessment. This Direction is without prejudice to any power in the child support officer to make a new interim maintenance assessment but, if an interim maintenance assessment is made only from a date in 1997, that may not remove the need to make an ordinary maintenance assessment in respect of the period of some three and a half years preceding that date.

(Signed)

M Rowland
Commissioner
5 June 1997